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Suhas Chakma Director, Asian
Centre for Human Rights

The
Central Government's recent decision to form an
expert group to look into the "legal,
constitutional and moral" aspects of the Armed
Forces Special Powers Act (AFSPA) in Manipur is a
step in the right direction. The AFSPA has not
been able to resolve a single insurgency problem
since its adoption in 1958. When the AFSPA was
imposed in Manipur in 1980, there were four armed
opposition groups. Today, there are over two
dozens armed opposition groups.

The AFSPA has as
much to do with draconian special powers accorded to the
security forces as it has to do with the federalism in
the country. Unless an area is declared disturbed under
Section 3 of the AFSPA, the central security forces
cannot legally come in aid of civil administration. In
the original version of the AFSPA of 1958, only the
state governments had the power to declare an area as
disturbed consistent with Article 246 of the
Constitution to be read with the 7th Schedule which
places "law and order" under the State's list.

The 1972 amendments
to the AFSPA took away the power from the State
Government and its legislative Assembly and handed it
over to the Governor, an appointee of the Centre.
Therefore, under the AFSPA, the Centre subsumes the
powers of the State governments to declare certain parts
or whole of a State or Union Territory under emergency
without having to resort to the strictness required
under the Article 356 of the Constitution of India for
declaration of public emergency.

Section 4(a) of the
AFSPA empowers non-commissioned officers to "fire upon
or otherwise use force, even to the causing of death"
which basically provides the license to kill. Over
20,000 people have been killed since the AFSPA was
imposed in 1980 in Manipur. There are hundreds of armed
encounters each year. Not every armed encounter is
questioned. However, when people, whether innocent
civilians, suspects or members of armed oppositions
groups are captured from their houses or villages and
routinely killed in fake encounters, allegations of
extrajudicial killings surface.

While no legitimate
question is ever raised when security forces "destroy
any arms dump, prepared or fortified position or shelter
from which armed attacks are made" while exercising
powers under clause 4(b) of the APSPA, the powers to
shoot "where absconders may be hiding" is legally
untenable. The Supreme Court in its various judgements
held that "absconding by itself is not conclusive either
of guilt or of a guilty conscience".

The power to make
arrest without warrant under section 4(c) of the AFSPA
on the suspicion that the accused "has committed or is
about to commit a cognisable offence" is equally
problematic. Often arrests without warrant lead to
torture and other human rights violations including
extrajudicial killings. Similarly, search without
warrant has been one of the main causes of alienation of
the people of the Northeast.

The most problematic
area is virtual impunity given under Section 6 of the
AFSPA as "no prosecution, suit or other legal
proceedings" can be instituted, except with the previous
sanction of the Centre. The Assam Rifles personnel
questioned the jurisdiction of the Upendra Commission of
Inquiry into the death of Manorama Devi on the ground
that Manipur Government had not taken prior permission
f

In any case,
prosecution of Government officials also requires
permission from the concerned State or Central
Government under Section 197 of the Indian Criminal
Procedure Code. If the Centre were to give permission
under section 197, there is no reason as to why the same
will not be accorded under AFSPA. Section 197 of the
CrPC amended in 1991 to provide immunity to the security
personnel in Punjab has overtaken Section 6 of the AFSPA
of 1958. The inability to prosecute police personnel in
Andhra Pradesh for fake encounter killings is
self-explanatory.

The Manipur
commandos, under direct control of the State Government,
are equally repressive. The killing of RK Sanjaoba,
nephew of a former Chief Mister, on October 20, is a
clear example. The Centre has recently decided to
increase the number of Manipur Commandos from 800 to
1800 for counter-insurgency operations in the hill
districts of Manipur. There is no need for the AFSPA for
their deployment. The review can help reduce alienation
but human rights situation on the ground is unlikely to
change as local commandos combat the insurgents. At the
end of the review, the power to declare an area
disturbed may turn out to be most important for the
Centre. No exit from the
quagmire!